ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 13-57503
DATE: 20150609
BETWEEN:
STEVEN CORRIGAN
Plaintiff
– and –
CRAIN & SCHOOLEY INSURANCE BROKERS LTD.
Defendant
Bryan Delaney, for the Plaintiff.
Mitchell Kitagawa, for the Defendant.
HEARD: May 21, 2015
r. d. gordon, r. s. j.
Overview
[1] In late December of 2012, in the middle of the night, a tarp barn located on the Plaintiff’s property collapsed. The Plaintiff says that the Defendant failed to place proper insurance on the tarp barn and ought to pay his damages.
[2] The Defendant has brought a motion for summary judgment for dismissal of the Plaintiff’s claim saying there is no genuine issue requiring a trial.
[3] The Plaintiff has countered with a motion for summary judgment of its own, saying there is no genuine issue requiring a trial on the issue of liability.
Background Facts
[4] The Plaintiff is a farmer in the Town of Richmond, Ontario, just outside of Ottawa. In 2006 he purchased a tarp barn in order to store hay for his cows during the winter season.
[5] The Defendant is the insurance broker that had placed insurance on the farm for the Plaintiff.
[6] In 2006, the Plaintiff contacted the Defendant to have the tarp barn insured. The Defendant added the tarp barn to the existing policy as an outbuilding to be insured for named perils. The policy was renewed annually thereafter. The Plaintiff was regularly sent a copy of his policy. He acknowledges that he did not read his policy in detail but would simply check to ensure that each building on his property was listed as being covered. He did not appreciate that the policy covered the tarp barn for named perils only. He was not aware that the tarp barn was not covered for collapse due to snow load.
[7] On the morning of December 28, 2012, the Plaintiff awoke to find that the tarp barn had collapsed. His wife reported the collapse to the insurer and was advised by a representative of the insurer that there was no coverage for collapse under their policy. That same representative, Mr. Rolofs, attended at the farm the same day to inspect the damage and determine the possible causes of the collapse. He wanted to determine if the cause might fall under a named peril, such as wind.
[8] When Mr. Rolofs attended the farm he was met by an unhappy Mr. Corrigan. It is reasonable to infer that Mr. Corrigan had been advised by his wife that there was no coverage for collapse of the tarp barn. Mr. Rolofs was denied access to the property and subsequently wrote to the Plaintiff advising of the requirement for a proof of claim and other requisites should he wish to make a claim for coverage.
[9] The Plaintiff did not submit a proof of claim and took no further action against the insurer. Instead, he initiated this claim against his insurance broker alleging that the tarp barn had collapsed under the weight of snowfall and wind, that he was not insured for damage due to snow load and that the Defendant was negligent in not having placed such insurance for him.
Applicable Law
Re Summary Judgment
[10] The motions before me are brought under Rule 20.04(2) of the Rules of Civil Procedure, which provides, inter alia, that a court shall grant summary judgment if satisfied that there is no genuine issue requiring a trial.
[11] In Hryniak v. Mauldin (2014) SCC 7, the Supreme Court of Canada said the following:
There will be no genuine issue requiring a trial when the judge is able to reach a fair and just determination on the merits on a motion for summary judgment. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and (3) is an proportionate, more expeditious and less expensive means to achieve a just result.
[12] In deciding whether there is a genuine issue for trial, I have the discretion to use enhanced fact-finding powers, unless it is in the interests of justice for such powers to be exercised only at a trial.
[13] It is also necessary that parties but their best foot forward at a motion for summary judgment and put before the court all of the evidence upon which they intend to rely upon at trial. It is not adequate to say that further or other evidence may later be adduced.
Re the Claim of Negligence
[14] Although the Plaintiff in his Statement of Claim framed his action under breach of contract, breach of fiduciary duty and negligence, it is clear that the real basis for the claim is negligence.
[15] It is well established that a successful action in negligence requires that four separate elements be proved on a balance of probabilities:
(1) That there was a duty of care owed by the Defendant to the Plaintiff;
(2) That the behaviour of the Defendant was in breach of the applicable standard of care;
(3) That the Plaintiff suffered damages;
(4) That the damages suffered by the Plaintiff were caused by the impugned behaviour of the Plaintiff.
[16] What must be determined by me is whether there is a genuine issue requiring trial with respect to any of these required elements.
Analysis
Was There a Duty of Care?
[17] There can be little doubt that the Defendant owed the Plaintiff a duty of care. It was not argued otherwise. There is no genuine issue requiring a trial for this element of negligence.
Was There a Breach of the Standard of Care?
[18] The standard of care expected of an insurance broker has been determined by the appellate courts. An insurance broker has a stringent duty to provide both information and advice to their clients, to exercise a reasonable degree of skill and care to obtain policies in the terms bargained for and to advise clients if unable to do so [see Fletcher v. Manitoba Public Insurance Co., 1990 59 (SCC), [1990] 3 R.C.S. 191 (S.C.C.); Fine’s Flowers Ltd. et al. v. General Accidence Assurance Co. of Canada et al., 1977 1182 (ON CA), 17 O.R. (2d) 529 (Ont. C.A.)].
[19] The Plaintiff argues that the Defendant failed to inform itself about the Plaintiff’s business, failed to assess the Plaintiff’s foreseeable risks and appropriate levels of insurance, and failed to advise the Plaintiff of what coverage was not being afforded. The Plaintiff has deposed to this, and the Defendant has not denied it except to say that the Plaintiff was sent documentation each year setting out the nature and extent of his coverage and was therefore adequately advised.
[20] I am satisfied that the Defendant breached its duty to advise the Plaintiff. As stated in Fletcher, supra, private insurance brokers are more than just mere salespeople. There is no evidence before me to establish that any analysis was done with respect to Mr. Corrigan’s request for insurance, that any advice was provided to Mr. Corrigan on the insurance he was being provided, or that any advice was provided to him on foreseeable risks that could not be insured. On the contrary, the evidence of Mr. Corrigan is that none of these things happened. I accept his evidence in that regard.
[21] There is no genuine issue requiring a trial on this element of negligence.
Did the Plaintiff Sustain Damages?
[22] It cannot be denied that the Plaintiff has a loss. The tarp barn that he purchased to protect his hay during the winter months has been lost. It was not argued otherwise. There is no genuine issue requiring a trial on this element of negligence.
Did the Defendant’s Breach Cause the Plaintiff’s Loss?
[23] The Defendant argued that because the Plaintiff never made a claim to his insurer, coverage under the policy has never been determined and therefore he cannot succeed in this proceeding. I disagree. The Plaintiff is not obliged to pursue his insurer when he is of the view that there is no coverage. However, his success in this action will be predicated, in part, upon his ability to prove that there was no coverage. That is, for the Defendant’s breach to have caused the loss, the Plaintiff must be able to prove on a balance of probabilities that the loss arose from a peril for which there was no coverage. The Plaintiff’s position is that the loss resulted from snow load, a peril that is not named in his policy.
[24] The Plaintiff can meet his burden of proof in two ways: First, he can establish positively that the snow load caused the loss. In the alternative, he can establish that snow load was a plausible cause for the loss and that all other plausible causes may safely be excluded.
[25] As I have already indicated, the parties are required to put their best put forward on motions such as these and lead all of the evidence they have on each element of the case. There is not a great deal of evidence on the issue of causation. Essentially, the Plaintiff asks that I find the cause of the collapse to have been snow load based upon photographs of the tarp barn after its collapse and which show there to be snow on it, along with records from Environment Canada for December 2012. Those records show no precipitation from December 22nd through the 26th, 14.8 millimetres of precipitation (with no indication of whether it was rain or snow) on December 27 and no precipitation on December 28. Snow on the ground is indicated to be 31 cms on December 27 and 43 cms on December 28. The increase in snow on the ground of 12 cms, combined with the temperature on those days (consistently below zero Celsius) leads to the reasonable inference that the precipitation on December 27 was snowfall that amounted to about 12 cms.
[26] The Defendant argues that the evidence is insufficient to make a finding that the loss was due to snow load.
[27] I agree with the Defendant. There are several problems with the evidence of the Plaintiff:
(1) The Photographs which show the fallen tarp barn are not dated and there is no evidence of when they were taken. It is therefore difficult to discern if they are an accurate representation of the tarp barn on December 28. All that can accurately be said is that they were taken sometime after Mr. Corrigan got up on the morning of December 28.
(2) One of those photographs shows one of the walls of the tarp barn falling outward; other photographs show the other walls of the tarp barn left standing and unaffected by the collapse. This could be suggestive of a fault with the failing wall.
(3) No design specifications for the tarp barn were provided, and accordingly, there was no evidence before me that the snowfall as alleged might be considered problematic for the structure. Without such evidence, the collapse is also consistent with a design flaw or installation flaw with the tarp support structure.
(4) Damage due to wind was an insured peril under the Plaintiff’s policy of insurance. Wind speeds were not accurately established for the night in question. The Environment Canada report indicates that winds were less than 31 kms per hour, but are no more specific than that. According to Environment Canada’s Beaufort Wind Scale Table, these would be classified as Force 5 winds at most, and would be strong enough to sway small trees with leaves and create crested wavelets on inland waters. Again, without design specifications for the building, wind cannot be discounted as a cause of the loss.
(5) The Defendant refused to allow Mr. Rolofs, the insurance representative, on the property to examine the damage. Accordingly, there was no opportunity for anyone but the Plaintiff to determine if the loss might be due to some cause other than snow load.
[28] In short, the evidence is insufficient to meet the burden required of the Plaintiff on the issue of causation. Although it may well be that the collapse was the result of snow load, the evidence is just as consistent with it having been the result of design flaw, construction flaw, wind, or some combination of these factors. I cannot say, based on the scant evidence before me, that it is more likely than not that the collapse was due to snow load.
[29] There is no genuine issue requiring a trial. There would be nothing to gain by having the evidence before me presented viva voce at trial. Given the damages at issue between the parties, the resolution of this case at the summary judgment stage is particularly appropriate given the nature of the evidence and the need to have a decision made in the most expedient and inexpensive fashion.
Conclusion
[30] The Defendant’s motion for summary judgment is granted. The Plaintiff’s claim is dismissed. If the parties are unable to agree on costs, they may make written submissions to me, not to exceed three pages plus attachments each, within 45 days.
R. D. Gordon, R. S. J.
Released: June 9, 2015
COURT FILE NO.: 13-57503
DATE: 20150609
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
STEVEN CORRIGAN
Plaintiff
– and –
CRAIN & SCHOOLEY INSURANCE BROKERS LTD.
Defendant
Ruling on motion for
summary judgment
R. D. GORDON, R. S. J.
Released: June 9, 2015